' ZIA MAHMOOD MIRZA, J.---Amir Muhammad, father of the petitioners was owner of the land comprising Khasra Nos.505, 515 and 516 situate in Rod-Mullazai, Tehsil Pishin. He brought a suit for declaration and permanent injunction against the respondents herein in respect of an area measuring 3-1/2 acres which, it was alleged, was unsurveyed and unsettled state land and was situated quite adjacent to the plaintiff's aforementioned land. Claim of the plaintiff, the predecessor of the present petitioners was that according to the established Custom/Riwaj obtaining in the area, he being the owner of 'Mahazi' land was entitled to exclusive possession of the suit land. It was alleged by the plaintiff that in fact the suit land was in his use and occupation since long but the respondents who have no right or title thereto have since started interfering with his possession. With these averments, the plaintiff sought a declaration of his entitlement in the aforesaid terms and also prayed for issuing a permanent injunction to restrain the respondents from interfering with. His exclusive possession over the suit land.
2. The suit was contested by private respondents who claimed to be in possession of the suit land and further pleaded that the land in dispute belonged to the residents of village who had constructed their houses on a considerable portion thereof.
3. Trial court framed necessary issues arising from the pleadings of the parties including the issue relating to the entitlement of the plaintiff. Both the parties adduced evidence, oral as also documentary, in support of their respective contentions. The learned trial Court after thorough appraisal of the evidence brought on the record came to the conclusion that it was an admitted fact that the disputed land was unsettled land but the evidence showed that a road intervened between the suit land and the land of the plaintiff. With respect to the possession of the suit land, it was held by the trial Court that "the same is proved to be of the defendants" and it was further observed that since the disputed land is unsettled land, all the people of the area were equal owners thereof which fact was also admitted by the parties before the arbitrators in Exh.-D/14. In view of these findings, the trial court dismissed the suit vide judgment dated 30-4-1992. Appeal filed against the judgment of the trial Court met no better fate as the same was dismissed by the Additional District Judge-III, Quetta. Petitioners then approached the High Court of Balochistan in its revisional jurisdiction but with no better result as their revision petition (C.R.35/93) too was dismissed by the learned Chief Justice of the High Court vide judgment dated 4.8.1993 holding in para. 8 thereof:- "From thorough re-appraisal of oral and documentary evidence brought on record it can be safely inferred that petitioners have neither exclusive right nor cultivatoty possession over the unsettled area forming suit-land. It is, however, well-settled that custom or Riwaj when pleaded should necessarily be established through reliable evidence. Person claiming right must prove that such custom/Riwaj was ancient, continuous from times immemorial and was being followed without interruption by the people of area. There is not an iota of evidence to satisfactorily prove any such prevalent Riwaj or custom. There is scanty evidence with vague suggestions showing control of unsettled land by the petitioners which cannot be deemed sufficient to establish relief sought for by petitioners.. Both the forums below have exhaustively considered whole material available on record and rejected claim of petitioners through well reasoned judgments. On independent re- evaluation of the evidence I am inclined to 'confirm conclusions arrived at by both the forums below. There is hardly any defect, illegality or material irregularity which may warrant interference in the exercise of revisional jurisdiction within the purview of section 115, C .P .0 . "
4. Feeling aggrieved, the petitioners filed this petition for leave to appeal against the judgment of the Balochistan High Court.
5. We have heard the learned counsel appearing for the petitioners. He.Has contended that there is ample evidence on the record to prove the Custom relied upon by the petitioners in support of their claim. He also contended that the petitioners led sufficient evidence to show that they had broken the suit land, levelled it and brought it under cultivation. In support of this later contention, learned counsel heavily relied upon the documents Exhs.P/4 and P/5. Exh.P/4 is a copy of the challan showing the deposit of Rs,400 by Raz Muhammad petitioner with Agricultural Engineering Department as rental for the Tractors and Exh.P/5 is a copy of the work order issued by the Agricultural Engineering Department directing the tractor driver to work for Raz Muhammad Petitioner. These documents do not advance the case of the petitioners as they do not show that the petitioners hired the Tractors for breaking/levelling/cultivating the land in dispute. Even otherwise, the question of possession of the suit land stands concluded by the findings recorded by the Courts below after proper appraisal of the evidence on record which findings have not been shown to suffer from any legal infirmity. Even the learned Chief Justice of the High Court has reappraised the evidence on the record and affirmed the findings of the Courts below by observing that the petitioners had neither exclusive right nor cultivating possession over the suit land.
6. As regards the custom/Riwaj set up by the petitioners, it has been rightly observed in the impugned judgment of the High Court that the custom or Riwaj when pleaded has to be established through reliable evidence but the petitioners failed to bring on record any satisfactory evidence to prove .The alleged custom. It has been noted by the learned Chief Justice that the Wajibul Arz produced by Ghulam Haider Patwari P.W.3 "does not contain any custom or usage about the rights of Mahazi - Malikan as asserted by the petitioners". When confronted with this finding, learned counsel was unable to challenge it with reference to the copy of Wajibul Arz Ex-P/1.
Petitioners having failed to prove the custom which formed the basis of their claim, they were not entitled to the reliefs sought by them. No exception can, therefore, be taken to the dismissal of their suit.
7. In view of what has been said above, we find no merit in this petition, which is accordingly dismissed.